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Tuesday, May 28, 2024 | Back issues
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Judge advances claims over privacy of decades-old yearbook photos

Is there an expectation of privacy attached to old yearbook photos? Turns out even federal judges are divided on the issue.

(CN) — Not unlike the smell of stale sweat in locker rooms and occasionally questionable lunch offerings in the cafeteria, bad yearbook photos are an unavoidable reality for the average school student. From grade school through high school, having a cringy yearbook picture — often complete with adolescent acne and a crooked smile — is an experience many are all too familiar with.

But imagine that long after your schooling days are done, you find that your old yearbook pictures have made the rounds on the internet without your knowledge, and a company is making money from them.

That's what Californians Meredith Callahan and Lawrence Geoffrey Abraham claim happened to them. The pair filed a class action against PeopleConnect this past December. PeopleConnect collects and stores vast amounts of information from yearbooks, including names and pictures, that goes towards promoting its website Classmates.com, which offers a subscription membership service and even reprinted yearbooks for just under a hundred bucks.

According to the lawsuit, PeopleConnect operates this business without ever getting — let alone requesting — permission from the people in the pictures, a move the plaintiffs say has violated their expectation of privacy.

Callahan and Abraham's lawsuit is one in slew of legal battles that has left the judicial system scrambling for answers. This past June, Ancestry.com convinced a federal judge to toss similar accusations leveled against the genealogy giant, with the judge finding that yearbook pictures are not entitled to special protections.

Eric Goldman, a professor of law at Santa Clara University School of Law, says that while yearbooks are largely viewed as published material and people do not own copyrights to their yearbook pictures, the realities of the internet in today’s world has presented new questions that our court system struggles to resolve.

“The hard part is that yearbooks had a degree of obscurity that made them harder for people to find in the future than other types of printed books, and the internet has lifted that veil of obscurity that shrouded yearbooks in a way that makes it feel like a new question even though we think of yearbooks as published materials,” Goldman said.

“And I think that’s why the courts are struggling with this issue. On the one hand, there’s really no question about the nature of yearbooks and published material. On the other hand, the internet lifting that veil of obscurity creates new exposure to those yearbooks that people never anticipated.”

Goldman also notes that when grappling with an issue like this, there are really three distinct issues that often get tossed together but need to be separated in order to understand how these legal conundrums can be resolved.

“There’s the issue about the yearbook publication in the first instance,” Goldman said. “There’s the issue about publishing the yearbooks as part of a profit-supported enterprise by different publishers. And then the third question is using material from the yearbook in order to create advertisements to pull people into the subscription-supported website. And I see those each as different questions that are often lumped together, but need to be disentangled.”

PeopleConnect recently moved to dismiss Callahan and Abraham's lawsuit, but on Monday U.S. District Judge Edward M. Chen, a Barack Obama appointee, largely denied the request. While Chen limited their claims by tossing an intrusion claim that the company intruded on private information, he advanced the bulk of the action.

According to Chen, because the plaintiffs have shown without any doubt that they were never paid for any of the yearbook pictures and a reasonable assumption can be made that those pictures had advertising value to PeopleConnect, the class action must proceed.

For Aleecia M. McDonald, assistant professor of the practice that focuses on internet privacy issues at Carnegie Mellon University, she says that the context on when the pictures were first taken adds a new wrinkle into the equation.

“Using someone’s old yearbook photos for profit without asking permission is what Professor Helen Nissenbaum terms ‘context collapse’” McDonald said. “We may be comfortable having information shared in one context, but not removed from that context and used in another way. Our laws have not caught up with this well yet, imagining that data are either entirely private or entirely public, as in the old Third Party Doctrine idea that sharing a phone number for an operator to connect a call means there is no need for a warrant to know whom we call. When we add the complication that many high school seniors are minors, this gets even more uncomfortable.”

McDonald noted states need to help solidify the protections and rights for people’s private information, yearbook pictures included.

“We have new laws like California’s CCPA/CPRA that require permission from teens or their parents before using some types of personal data,” McDonald said. “Even as adults, Californians are afforded the right to opt out of data sale in many cases. State by state, we are likely to see more laws like the California privacy rights. Actors like PeopleConnect illustrate why we need to strengthen legal rights to our own images and other personally identifiable data."

Representatives for PeopleConnect did not respond to request for comment by press time.

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Categories / Civil Rights, Media, Technology

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